Johnson Nkonge O. M’rucha v John Phares Njeru M’ithaara & another [2017] KEELC 1083 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has special jurisdiction to rehear an application already determined by a court of concurrent jurisdiction
No. Jurisdiction cannot be contrived or presumed; the court has no power to rehear matters determined by a judge of the same horizontal and concurrent jurisdiction, and the ELC's specialised status does not confer such a power.
The applicant argued that as a specialised court the ELC could entertain a fresh application similar to one determined on 1st April 2010. Relying on the Supreme Court's guidance in S.K. Macharia v KCB, the court held that jurisdiction flows only from the Constitution or legislation and cannot be arrogated or presumed. A specialised status does not enlarge jurisdiction, so a fresh injunction application repeating one already determined was not competent.
Whether the application dated 14th February 2017 was res judicata and an abuse of process
Yes, effectively. It was undisputed that an application seeking similar orders was determined on 1st April 2010, and the preliminary objection on res judicata was upheld.
The court noted it was not disputed that a similar injunction application had been determined about seven and a half years earlier, at which time the land had already changed ownership to Justus Muruja Musa, who was not a party. The defendant's preliminary objection on res judicata and abuse of process was therefore upheld, and the fresh application was dismissed with the ex-parte orders vacated.
Whether an injunction could issue against a defendant who is not the registered owner of the suit property
No. The defendant had transferred the suit property to Justus Muruja Musa in 2009, and the prior ruling had refused injunction on that basis.
The defendant deponed, and the preliminary objection recorded, that he transferred the suit property to Justus Muruja Musa pursuant to a court order, with a title deed issued, and that the court had previously refused an injunction on 1st April 2010 on the basis that no injunction could issue against a defendant who was no longer the owner. The court upheld the objection and dismissed the application.
Legal principles established
#- A court cannot exercise jurisdiction beyond that conferred by the Constitution or written law; without jurisdiction the court cannot entertain any proceedings
- A judge has no jurisdiction to re-open a matter heard and determined by a judge of horizontal and concurrent jurisdiction
Court orders
#- 1.The defendant/respondent's Notice of Preliminary Objection dated 6th March 2017 is upheld
- 2.The plaintiff's/interested party's application dated 14th February 2017 is dismissed
- 3.Any orders granted in the application dated 14th February 2017 are vacated forthwith
- 4.Costs shall be in the cause
- Jurisdiction invoked
- Environment and Land Court Act (sections 18 and 19 referred to in submissions); jurisdiction flows from the Constitution and written law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johnson Nkonge O. M’rucha v John Phares Njeru M’ithaara & another [2017] KEELC 1083 (KLR)", Case Analysis (2017). Chuka H.C ELC No. 108 of 2017 (formerly Meru HCCC No. 12 of 2009 consolidated with Meru CMCC No. 8 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1083/eng@2017-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.